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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Value of Probated Estates

06/16/2005
3:22 PM
Merri Rudd

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.


Q: Is there a value above which a lawyer must be retained and below which a lawyer is not required in probate court? My question was prompted by a living trust salesman who had a book about living trusts recommended by AARP (so he said) that listed the cutoff value of estates requiring an attorney to probate the will. A table in the book listed New Mexico at $30,000 and Texas at $50,000. Additionally, the salesman's presentation called for immediate action on our part, which scared us off. W.W.W.

Your question raises several misconceptions that I am happy to set straight. And kudos to you for trying to get accurate information before taking "immediate action!" I wish everyone were as cautious as you.

There is no value above which a lawyer must be retained for opening a probate case in the probate courts. For example, if a decedent owned a house, stocks, and bank accounts valued at $1,000,000, one could file a probate in the probate court, with or without an attorney's help. A probate can also be filed in the district courts, but usually people hire attorneys to do this.

Whether or not people ought to handle their own probates without an attorney's help is an entirely different inquiry. However, the New Mexico Supreme Court has approved 'do-it-yourself' probate forms, which can be used in the probate courts for intestate (no valid will exists) or testate (a valid will exists) cases. These forms can be downloaded for free from our court's web site: www.bernco.gov/probate-judges-office/ You can also purchase a printed copy of the forms for $5.00 from any probate court.

As useful as the forms are, the instructions with the forms do not address every issue that may arise in a probate case. For example, if real property (land, house, ranch, mineral rights, etc.) is part of an estate, additional paperwork must be done. The forms do not address this issue. 

After reviewing the packet of probate paperwork and the responsibilities of serving as personal representative of an estate, many people decide to hire an attorney to help them with at least part of the probate. But the complexity of an estate, not its value, often motivates people to hire an attorney.

Remember, too, that trusts are not the only way to avoid probate. How a decedent's property is titled determines which assets require a court probate proceeding. Assets held in joint tenancy, payable on death accounts, transfer on death accounts, life insurance policies and individual retirement accounts with named beneficiaries, and trust property typically pass to the surviving joint tenant or surviving named beneficiary without a probate proceeding. If all of the assets of an estate are titled using one of the above methods, a court probate would probably not be necessary, no matter what the value of the estate is. 

If an estate contains assets worth over $30,000 that are titled in the decedent's sole name or as "tenants in common," those assets need to be probated.

The $30,000 figure mentioned in your seminar may have been referring to New Mexico's special "short cut" law for small estates. If an estate contains only personal property and the total value of that personal property is $30,000 or less, an "affidavit of successor in interest" can be used to transfer ownership without a court probate. This sworn, notarized affidavit applies to bank accounts, stocks, bonds, mobile homes, cars, and other personal property, but does not apply to land, houses, or other real property.


© 2005, Albuquerque Journal, All Rights Reserved 

Appeared June 16, 2005, Albuquerque Journal, Business Outlook 

Reprinted with permission

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